Citation Nr: 0206725
Decision Date: 06/21/02 Archive Date: 06/27/02
DOCKET NO. 97-07 188 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUES
1. Entitlement to service connection for a sleep disorder,
secondary to service-connected asthma.
2. Entitlement to an increased rating for chronic steroid
dependent asthma, currently evaluated as 30 percent
disabling.
3. What evaluation is warranted for allergic rhinitis with
chronic sinusitis from September 14, 1983?
4. Entitlement to an increased rating for anxiety neurosis
with depression, currently evaluated as 10 percent disabling.
(The issues of entitlement to service connection for
hypertension and entitlement to a combined evaluation for
service-connected disorders of 80 percent will be the subject
of a later decision.)
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. A. McDonald, Counsel
INTRODUCTION
The veteran served on active duty from June 1978 to September
1983. This case comes before the Board of Veterans' Appeals
(hereinafter Board) on appeal from rating decisions from the
Department of Veterans Affairs (hereinafter VA) Regional
Office in Winston-Salem, North Carolina (hereinafter RO).
The veteran raised the issue of entitlement to a total rating
for compensation purposes based upon individual
unemployability during a hearing before the Board in June
1999. In its October 1999 decision, the Board noted that
this issue had not been developed or certified for appellate
review, and referred the issue to the RO. Unfortunately,
this issue has yet to be addressed by the RO. Therefore, the
issue of entitlement to a total rating for compensation
purposes based upon individual unemployability is again
referred to the RO for prompt and appropriate consideration.
The Board also notes that the issue of whether new and
material evidence has been submitted for entitlement to
service connection for a headache disorder, was raised in
February 1997. Although the RO sent correspondence advising
the veteran that he should submit new and material evidence
to reopen this claim, the RO has not yet adjudicated this
issue. In that the veteran has pursued this claim since
February 1997, this issue is referred to the RO for
appropriate disposition.
The Board is undertaking additional development on the issue
of entitlement to service connection for hypertension
pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104
(Jan. 23, 2002) (to be codified at 38 C.F.R. § 19.9(a)(2)).
When it is completed, the Board will provide notice of the
development as required by Rule of Practice 903. (67 Fed.
Reg. 3,099, 3,105 (Jan. 23, 2002) (to be codified at
38 C.F.R. § 20.903.) The issue of entitlement to a combined
evaluation for service-connected disorders of 80 percent is
deferred pending this additional development. After giving
the notice and reviewing any response to the notice, the
Board will prepare a separate decision addressing these
issues.
FINDINGS OF FACT
1. The veteran does not have a sleep disorder, separate and
distinct from currently service-connected symptomatology.
2. The veteran's allergic rhinitis with chronic sinusitis
does not result in three or more incapacitating episodes of
sinusitis per year requiring prolonged, i.e., four to six
weeks, of antibiotic treatment, or by more than six non-
incapacitating episodes per year of sinusitis characterized
by headaches, pain, and purulent discharge or crusting; nor
is it shown that this disorder is severe with frequently
incapacitating recurrences, severe and frequent headaches,
purulent discharge or crusting reflecting purulence. The
veteran's allergic rhinitis with chronic sinusitis is further
not manifested by nasal polyps, or by moderate crusting and
ozena with atrophic changes.
3. The veteran's anxiety neurosis with depression is not
productive of more than mild social and industrial
impairment. Further, it is not productive of more than
occupational and social impairment due to mild and transient
symptoms.
4. Asthma is not more than moderate, with rather frequent
attacks, and moderate dyspnea on exertion between attacks.
Neither the intermittent use of systemic corticosteroids due
to asthma, nor the need for monthly visits to a physician for
required care of exacerbations is demonstrated. Pulmonary
function tests do not show either a FEV-1 or a FEV-1/FVC
value of 40 to 55 percent of that predicted.
CONCLUSIONS OF LAW
1. A sleep disorder was not incurred in or aggravated by
active military service, nor is it shown to be proximately
due to a service-connected disorder. 38 U.S.C.A. §§ 1131,
5103A, 5107 (West 1991 & Supp. 2001); 38 C.F.R. § 3.310
(2001).
2. The criteria for a rating in excess of 10 percent from
September 14, 1983 for allergic rhinitis with chronic
sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5103A,
5107; 38 C.F.R. § 4.97, Diagnostic Codes 6501, 6514 (1995);
38 C.F.R. § 4.97, Diagnostic Codes 6510-6514, 6522 (2001).
3. The criteria for an increased rating for anxiety neurosis
with depression have not been met. 38 U.S.C.A. §§ 1155,
5103A, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9400 (1995);
38 C.F.R. § 4.132, Diagnostic Code 9400 (2001).
4. The criteria for an increased rating for chronic steroid
dependent asthma have not been met. 38 U.S.C.A. §§ 1155,
5103A, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6602 (1995);
38 C.F.R. § 4.97, Diagnostic Code 6602 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
The service medical records reveal that the veteran had one
episode of depression in 1982 that was diagnosed as
adjustment disorder with mood disturbance, with another
episode in April 1983. He refused therapy, and on a Medical
Evaluation Board examination in July 1983, it was noted that
the veteran appeared better adjusted.
The veteran had occasional sneezing and nasal congestion
during the spring and summer for which he was treated with
antihistamines and decongestants. However, it was noted on
the Medical Evaluation Board in July 1983, that his nasal
congestion and rhinorrhea had not been controlled by the
antihistamines, decongestants or nasal steroids, and that the
veteran had been started on immunotherapy. The diagnosis was
mild allergic rhinitis.
In May 1982, the veteran complained of sleeplessness, and in
June 1983, he reported having frequent trouble sleeping. The
service medical records are, however, negative for a
diagnosis of a sleep disorder.
A July 1983 Medical Evaluation Board noted that the veteran
had a history of childhood asthma up to the age of 10. In
February 1983, however, the veteran experienced a severe
episodic exacerbation. He was treated with medication, to
include steroids. Thereafter, his asthma was exacerbated
with efforts to wean him off the steroids. The diagnoses
included steroid dependent asthma.
Subsequent to service discharge, a VA examination conducted
in November 1983, reported a history of difficulty with
asthma and a sinus disorder, treated by steroids. The
veteran stated that he felt nervous frequently and was more
nervous when taking medications, to include the steroids. He
described recurrent feelings of shakiness and tension that
would improve when he was able to relax. He noted a history
of occasional feelings of depression which he felt was due to
his physical problems. The veteran reported having headaches
approximately twice a month which were manifested by sharp
pain and pressure. The headaches were relieved with Tylenol
and rest.
On examination, the veteran was quiet and cooperative. His
speech was coherent and his memory was adequate. Cranial
nerves were grossly intact and optic discs were clear. The
diagnoses were atypical anxiety disorder, with a history of
depression; and a headache of undetermined cause. A VA
physical examination revealed the nasal mucosa to be pale,
and the lateral turbinates to be swollen. It was noted that
the veteran sniffed frequently due to a clear liquid
discharge. The diagnoses included active allergic rhinitis.
A chest x-ray indicated a mild increase in the retrosternal
clear space with mildly increased ventilation of the lungs
suggestive of mild emphysema. Pulmonary function tests
showed the FVC was 97 percent of predicted and the FEV-1 was
80 percent of predicted.
A service department examination conducted in February 1985
for the temporary disability retirement list noted that the
veteran's nasal mucosa was within normal limits. Pulmonary
function tests showed the FVC was 103 percent of predicted
and the FEV-1 was 84 percent of predicted. Pulmonary
function test results were consistent with a mild airway
obstruction. The veteran was found to be unfit for military
duty due to acute bronchospastic symptoms with exposure to
certain grasses and dust, and exposure to cold and/or
exercise.
Service connection for asthma and allergic rhinitis, and for
an atypical anxiety disorder was granted in a December 1983
rating decision.
A VA examination in August 1986, reported a history of
allergic rhinitis, with good results on medication. On nasal
examination, boggy turbinates were found, with clear
drainage. The impression was allergic rhinitis under good
control. Pulmonary function tests showed the FVC was 77
percent of predicted and FEV-1 was 62 percent of predicted.
On examination, there was no wheezing with normal
respiration, but a faint wheeze was noted with forced
expiration. There was no cyanosis, clubbing, and the breath
sounds were normal. There was no pleural friction or
evidence of pleural effusion. The diagnosis was bronchial
asthma, under good control.
An August 1986 VA psychiatric examination noted that the
veteran described his sleep as "good." On mental status
examination, the veteran was alert, cooperative, and
friendly, and spoke in a coherent and goal-directed fashion.
There was no evidence of loose associations or flight of
ideas, and no bizarre motor movements or tics. His mood was
mildly tense, but his affect was appropriate. There were no
delusions or hallucinations. The veteran was oriented, and
his memory was good. Insight, judgment, and intellectual
capacity were adequate. The diagnosis was mild generalized
anxiety disorder.
Private medical records indicate that the veteran was seen in
February 1987 for increasing shortness of breath, wheezing
and a slight pain in his mid chest. He was not taking
medications. On examination, the lungs were significant for
bilateral wheezes and rhonchi. The chest x-ray revealed no
infiltrates or effusions but there was increased vascularity
consistent with bronchitis. The veteran was prescribed an
antibiotic and a bronchodilator.
At a VA examination conducted in August 1988, the veteran
complained of sneezing, stuffy head, and watery eyes due to
allergies. He noted that medication relieved these symptoms.
Examination of the ears, nose, and throat was normal.
Pulmonary function tests, pre-medication, reported the FVC
was 76.6 percent of predicted, and the FEV-1 was 71.1 percent
of predicted. The veteran stated that the medication he took
for his asthma was over-the-counter. On examination, there
were minimally scattered diffuse expiratory wheezes. The
diagnosis was asthma, by history, with allergic rhinitis.
A private medical record dated in September 1989, reported
that the veteran was taking over-the-counter medication for
his asthma. On examination the lungs showed slightly coarse
breath sounds with scattered wheezes. The examiner
prescribed a steroid for a course of 6 days. The veteran was
hospitalized in December 1989, for an acute asthma attack.
He noted that he had been on steroids in the past, but had
stopped on the advice of a physician. The veteran was
discharged against medical advice. The veteran was
prescribed a bronchodilator and steroids. The discharge
diagnosis were acute asthma, and possible asthmatic
bronchitis.
A private medical record in January 1991, reported complaints
of a bad cough. The veteran stated he had been using his
inhaler to excess and it was not helping anymore. There was
no evidence of pulmonary consolidation. The chest x-ray was
normal. He was prescribed steroids and tablets to supplement
his inhalational bronchodilator therapy. A chest x-ray in
May 1991, showed no active infiltrates within the lungs. In
June 1991, it was noted that the veteran had an asthma
attack. He had bilateral wheezes and rhonchi, but was in no
significant respiratory distress. The veteran was prescribed
an antibiotic and a steroid. The veteran was seen three days
later for a recurrence of bronchial spasm. Examination
revealed expiratory rhonchi and wheezes. The chest x-ray was
within normal limits. The veteran was provided inhalational
bronchodilator medication.
A private physician reported in August 1991, that the veteran
had a long history of recurrent bronchial asthma. He
reported being seen monthly in the local hospital, requiring
emergency treatment, and occasional hospitalization. At
those times the veteran reportedly was placed on steroids,
and maintained on declining doses for two to three weeks. On
examination, decreased oxygenation on blood gases, dyspnea,
and a decreased FEV-1 were reported. The diagnosis was
steroid dependent bronchial asthma. Private medical records
dated in October 1991, reveal that the veteran was seen for
an asthma attack and follow-up complaints. The lungs
revealed diffuse inspiratory and expiratory wheeze without
rhonchi or rales. He was discharged on a steroid taper.
A VA examination conducted in October 1991, noted that the
veteran took antibiotics a "couple of weeks out of the
year" because of sinusitis symptoms. The examiner noted
that the veteran was steroid dependent. On physical
examination, there was moderate mucosa nasal membrane with
edema and erythema. Nasal discharge was clear. The examiner
suspected that the veteran's chronic nasal rhinitis was worse
in the spring and fall, and he had chronic sinusitis,
secondary to an allergy. The impression was allergic
rhinitis, possible sinobronchial syndrome, with chronic
sinusitis. An x-ray of the paranasal sinuses indicated
hypertrophy of the nasal turbinates, bilaterally. The
presence of a mucocele involving the left maxillary sinus
could not be ruled out, indicating the possibility of chronic
sinusitis. A deviation of the nasal septum to the left was
noted. The rest of the paranasal sinuses were normal.
In a January 1992 rating decision separate ratings were
assigned for chronic steroid dependent asthma, and for
allergic rhinitis with chronic sinusitis.
A private hospital report in December 1991, noted that the
veteran was seen for shortness of breath. It was noted that
the veteran was a steroid dependent asthmatic, however, he
weaned off steroids approximately a week before being
admitted and then caught the flu. Examination of the
veteran's nose was unremarkable. The lungs showed bilateral
rales and wheezes. The diagnoses were asthma and flu.
Private medical records indicate that in August 1993, the
veteran complained of chest pain, which the examiner opined
was due to mild asthma, short of wheezing and yet caused air
trapping. It was noted that the veteran was not using
inhalational bronchodilator medication. In September 1993,
it was noted that the veteran was noncompliant with his
inhalational bronchodilator medication and was not using
steroids. He was complaining of wheezing. He was prescribed
a course of steroids and inhalational bronchodilator
medication. In November 1993, the veteran complained of
increasing shortness of breath, and had run out of his
medications. He was prescribed a course of steroids and
inhalational bronchodilator medication. In March 1994, the
veteran complained of chest tightness and shortness of breath
after being noncompliant with his medication. He was
prescribed a course of steroids.
VA outpatient treatment records dated in March 1994, reported
complaints of not being able to sleep at night, shakiness,
and irritability. On examination, the veteran was alert,
oriented, and anxious. The diagnosis was insomnia. He was
provided medication and on follow-up examination, it was
noted that he slept well. On examination, it was noted that
the veteran had mild anxiety and depression. Also, in March
1994, the veteran complained of chest pain. Rhonchi were
heard in the left lung. The diagnoses were bronchial asthma,
atypical chest pain, and anxiety neurosis.
In April 1996, the Board found that the December 1983 rating
decision was clearly and unmistakably erroneous in failing to
assign a separate rating for allergic rhinitis with chronic
sinusitis effective from September 14, 1983. The Board
further assigned an effective date of June 6, 1991, for a 30
percent evaluation for chronic steroid dependent asthma.
A private medical record dated in January 1995, indicated
complaints of shortness of breath. The veteran was
prescribed a steroid and inhalational bronchodilator
medication. The diagnosis was acute exacerbation of asthma.
In February 1995, the veteran complained of flu-like
symptoms. Lungs showed bilateral inspiratory and expiratory
wheezing with rhonchi. He was prescribed an antibiotic for
bronchitis, steroids, and inhalational bronchodilator
medication. The diagnoses were bronchitis and reactive
airway disease. In June 1995, the veteran complained of
wheezing. He was prescribed inhalational bronchodilator
medication. In September 1995, it was noted that the veteran
was taking steroids daily, but complained of increased
shortness of breath. He was advised to increase his steroids
and continue using his inhalational bronchodilator
medication.
A VA outpatient treatment record dated in January 1996,
reported complaints of an increase in severity of asthma. No
abnormal findings were found. The diagnosis was bronchial
asthma.
Private medical records reveal in June 1996, the veteran was
seen for complaints of wheezing. Examination of the chest
was significant for scattered wheezes. He was prescribed a
steroid in a one week taper. In October 1996, the veteran
complained of difficulty breathing after running out of his
inhalational bronchodilator medication. He was prescribed
inhalational bronchodilator medication and a steroid in a one
week taper. A VA outpatient treatment record dated in
November 1996, reported complaints of shortness of breath.
Lungs were clear to percussion and auscultation. The
veteran's medications were refilled. The diagnosis was
bronchial asthma.
A December 1996 VA nose and sinus examination noted
complaints of chronic nasal stuffiness and headaches around
the eyes. On examination, there was marked nasal stuffiness
on inhaling through each nostril. There was no tenderness to
pressure above or below the eyes; however, later in the
examination report the examiner noted some tenderness to
pressure above and below the eyes. An x-ray showed a
deviated septum to the left, with clear sinuses. The
radiologist stated that there was no change since the 1991 x-
ray. The pertinent diagnoses included allergic rhinitis with
chronic sinusitis. It was noted that steroids were used at
times for treatment of the allergic rhinitis with nasal
stuffiness.
A December 1996 VA trachea and bronchial examination noted
complaints of shortness of breath on walking for one to two
blocks on level ground, or walking up steps. The veteran
stated that he did not take steroids for his asthma but
needed cortisone in summer months for allergic rhinitis. On
examination, scattered wheezes were heard over both lung
fields. Chest x-ray was clear. The pulmonary function test,
premedication, revealed the FVC was 76 percent of predicted
and the FEV-1 was 68 percent of predicted. Testing indicated
a mild obstruction as well as low vital capacity, noted as
possibly due to a concomitant restrictive defect. The
examiner noted that the veteran had some chronic shortness of
breath and wheezing, that a slight cough that was present
almost all the time, and that he had acute attacks of more
severe shortness of breath and wheezing occurring two or
three times a week. Dyspnea was reported sometimes at rest
and sometimes on slight exertion. The diagnoses included
chronic bronchial asthma. The veteran stated that the
cortisone given to him was for his allergic rhinitis and not
for his asthma.
A private medical record in March 1997 reported an
exacerbation of asthma. It was noted that the veteran was
noncompliant with his inhalational bronchodilator medication
and steroid spray. It was noted that the veteran had not
required oral steroid therapy since December. The diagnosis
was exacerbation of asthma. He was prescribed an antibiotic
and oral steroid. A VA outpatient treatment record dated in
October 1997, reported complaints of nasal congestion. On
examination, there was no sinus tenderness or drainage.
Examination of the chest showed minimal to no wheeze. The
impressions were allergic rhinitis and asthma. Private
medical records indicate in October 1997, the veteran
complained of a one-week history of rhinorrhea. On
examination, he had bilateral congestion and his sinuses were
nontender. The diagnosis was bronchitis.
Private medical records in May 1998, report complaints of
difficulty breathing. The diagnoses were bronchitis and
asthma. He was prescribed a course of steroids. In July
1998, the veteran complained of difficulty breathing. It was
noted that the veteran was out of his medication. He was
prescribed a course of steroids and inhalational
bronchodilator medication. The diagnosis was asthma
exacerbation. A VA outpatient treatment record in July 1998,
the veteran reported complaints of asthma and problems
sleeping. The lungs were clear to percussion and
auscultation. The diagnoses included chronic asthma. A
sleep disorder was not diagnosed. Private medical records
indicate in October 1998, the veteran complained of clear
rhinorrhea with sneezing, and itchy, watery eyes. The
veteran noted that every year he gets shortness of breath,
secondary to congestion in his nose. On examination, his
conjunctiva were mildly red and his nose had bilateral, clear
congestion. The impression was allergic rhinitis. A private
medical record dated in June 1999 reported that the veteran's
asthma was stable on inhalers.
At a June 1999 hearing before the Board the veteran stated
that his rhinitis was worse in the in the summer and winter,
and his asthma was worse during pollen season. He further
asserted that his sleeping disorder was due to stress dealing
with his physical disabilities, due to the medications he
took for these disorders, and due to work related stress.
The veteran testified that his physical disorders aggravated
his psychiatric disorder. He offered that he got along well
with his coworkers, and that he did not think working with
chemicals affected his rhinitis. The veteran stated that
every time he went to the hospital, he was prescribed
antibiotics.
In February 2000, the Social Security Administration reported
that the veteran's Social Security records had been purged.
A January 2001 VA nose and sinuses examination noted a
history of fall and spring allergies. Reportedly,
antibiotics were occasionally needed for infection and the
veteran had used steroid sprays. Oral steroids were also
reportedly needed several times each year. Examination
revealed a severely allergic nose with large inferior
turbinates but no sign of infection. There was no evidence
of a sinus condition, so the findings were due to allergic
rhinitis.
At a January 2001 VA psychiatric examination the veteran
stated that his anxiety was aggravated and brought on by
asthma attacks, shortness of breath, and some of the
medications he took. The veteran denied the use of
psychotropic medications. He reported working full time as a
machine operator. The veteran denied panic attacks, crying,
or depressive ideation. It was noted that the veteran had
few friends and was socially isolated. On examination, the
veteran was neatly dressed and exhibited no bizarre motor
movements or tics. His mood was calm and his affect
appropriate. There were no complaints of nightmares,
flashbacks, or homicidal or suicidal ideation. Delusions,
hallucinations, ideas of reference, or suspiciousness were
not found. The veteran was oriented, and his memory was
good. Insight, judgment, and intellectual capacity were
adequate. The diagnosis was mild generalized anxiety
disorder, secondary to asthma. A global assessment
functioning score of 55 was assigned, with moderately serious
symptoms. The examiner stated that when the veteran's
anxiety was related only to his shortness of breath and/or
medication, it was more severe and intense than the anxiety
he experienced when not under the influence of medication or
having an anxiety attack.
A January 2001 VA respiratory examination noted complaints of
an occasionally productive cough; dyspnea on exertion with
walking more than two blocks when asymptomatic; however, when
symptomatic, he had shortness of breath at rest. The veteran
stated that he had shortness of breath almost daily during
the spring months from May to September, but it could happen
at any time. He noted that he had symptoms three to four
times a month and sometimes even more frequently, and he
would have to go to the emergency room for treatment. The
veteran stated he used four metered dose inhalers, one of
which is steroids. He noted that he took steroids orally for
most of the period between May and September, and then
sporadically when he had severe symptoms. On examination,
the chest was normal to inspection, palpation, and
percussion. He had scattered wheezes and rhonchi through all
fields on auscultation. The chest x-ray was unremarkable.
Pulmonary function tests found the post-medication FEV-1 was
67 percent of predicted, and the FEV-1/FVC, post-medication,
was 69 percent of predicted. The interpretation was that the
veteran had a mild obstructive lung defect. The clinical
diagnosis was bronchial asthma, probably allergic, with
residuals.
A February 2001 statement from the veteran's spouse indicated
that he was having trouble sleeping.
A VA outpatient treatment record dated in February 2001,
reported the veteran denied wheezing or shortness of breath.
He was not using steroids to control his asthma. Examination
of his lungs showed a good inspiratory effort, with no
rhonchi or rales.
A VA examination conducted in August 2001, reported
complaints of a ten-year history of sleep disturbance. The
veteran noted that he had difficulty falling asleep and was
restless. He stated that his anxiety was fair, but was worse
when he was having shortness of breath from an asthma attack
or was taking his medication. The veteran denied depression,
crying, depressive feelings, and panic attacks. He
reportedly lost his job the day prior to this examination.
On mental status examination the veteran was alert,
cooperative, pleasant, calm, and oriented. There were no
loosened associations or flight of ideas. Bizarre motor
movements and tics were not found. His affect was
appropriate. There were no flashbacks, nightmares, suicidal
or homicidal ideation, delusions, hallucinations, ideas of
reference, or suspiciousness. His memory was good. Insight
and judgment were adequate, as was intellectual capacity.
The diagnosis was mild generalized anxiety disorder,
secondary to asthma. A global assessment functioning score
of 55 was assigned. The examiner stated that the veteran did
not have sleep apnea. It was further opined that the
veteran's anxiety was aggravated by his asthma and asthma
medication, and as long as he continued to have the same
medical condition, his anxiety would not improve.
An additional VA examination conducted in August 2001,
reported complaints of difficulty sleeping, with trouble
staying asleep and getting back to sleep if the veteran
awakened. The veteran's wife said he snored. The veteran
stated that he had problems with coughing up post-nasal drip
and drainage from his sinuses. The examiner stated that
there was no evidence of any apnea or cessation of sleep
during the night, nor was there a diagnosis in the record
"suggesting" sleep apnea. The diagnoses included no
evidence of sleep apnea.
Analysis
Initially, the Board notes that during the pendency of the
veteran's appeal, the Veterans Claims Assistance Act of 2000
was signed into law. Pub. L. No. 106-475, 114 Stat. 2096
(2000). The Veterans Claims Assistance Act is codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West Supp. 2001). Following the RO's determination of the
veteran's claim, VA issued regulations implementing the
Veterans Claims Assistance Act. 66 Fed. Reg. 45,620, 45,630-
32 (August 29, 2001) (to be codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326). The Veterans Claims Assistance
Act and the implementing regulations pertinent to the issues
on appeal are liberalizing and are therefore applicable to
the issues on appeal. See Karnas v. Derwinski, 1 Vet. App.
308, 312-13 (1991).
The Act and the implementing regulations essentially
eliminate the requirement that a claimant submit evidence of
a well-grounded claim, and provide that VA will assist a
claimant in obtaining evidence necessary to substantiate a
claim. VA is not required to provide assistance to a
claimant if there is no reasonable possibility that such
assistance would aid in substantiating the claim. The Act
and regulations also require VA to notify the claimant of any
information, and any medical or lay evidence, not previously
provided to VA that is necessary to substantiate the claim.
As part of the notice, VA is to specifically inform the
claimant which of the evidence is to be provided by the
claimant and which VA will attempt to obtain on behalf of the
claimant.
The Board is satisfied that the facts relevant to these
claims have been properly developed and there is no further
action which should be undertaken to comply with the
provisions of the Veterans Claims Assistance Act or the
implementing regulations. Here, the veteran has been
informed of the laws and regulations pertaining to his claims
in the statement and supplemental statements of the case. He
has been afforded numerous VA examinations, and in November
2001, the appellant indicated that he had nothing to add to
the record. An additional remand to afford the RO an
opportunity to consider the claims in light of the
implementing regulations would only serve to further delay
resolution of the claim with no benefit flowing to the
veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546
(1991) (strict adherence to requirements in the law does not
dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided). Therefore, the Board finds that
the veteran has been provided adequate notice, that the duty
to assist has been fulfilled, and that the case is now ready
for a merits based review.
I. Sleep Disorder
In general, service connection may be established for a
disability resulting from an injury suffered or disease
contracted in the line of duty, or for aggravation of a
preexisting injury or disease in the line of duty. 38
U.S.C.A. § 1131; 38 C.F.R. § 3.303(a) (2001). Regulations
also provide that service connection may be granted for a
disability diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disability is due to disease or injury which was incurred in
or aggravated by service. 38 C.F.R. § 3.303(d).
Additionally, pertinent regulations provide for a grant of
secondary service connection where a disability is determined
to be proximately due to or the result of a service-connected
disease or injury. 38 C.F.R. § 3.310 (2001). Further, in
Allen v. Brown, 7 Vet. App. 439 (1994), the United States
Court of Appeals for Veterans Claims (hereinafter Court) held
that where service connection is sought on a secondary basis,
service connection could be granted for a disability which
was not only proximately due to or the result of a
service-connected condition, but could also be granted where
a service-connected disability had aggravated a nonservice-
connected disability.
The veteran contends that service connection is warranted for
a sleep disorder. Based on a careful review of the record,
however, the Board finds that the preponderance of the
evidence is against this claim. There is no evidence of a
sleep disorder during service and no evidence of treatment
for such a disorder after service. Although the veteran has
complained about sleep impairment, a sleep disorder has not
been diagnosed.
In weighing the evidence of record, the Board finds that a
sleep disorder, separate and distinct from currently service-
connected symptomatology is not of record. While the veteran
maintains that he has a sleep disorder, such as sleep apnea,
as a lay person who is untrained in the field of medicine, he
is not competent to provide a diagnosis or to offer an
opinion as to medical etiology of any sleep impairment.
Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, based
on a review of all of the evidence of record, the Board finds
that the preponderance of the evidence is against the
veteran's claim. Service connection for a sleep disorder is
therefore denied.
In reaching this decision the Board has considered the
"benefit of the doubt" doctrine; however, as the
preponderance of the evidence is against the claim, the
doctrine is not for application. Gilbert v. Derwinski, 1
Vet. App. 49 (1990). The Board also notes that the veteran
has been informed of the evidence necessary to substantiate
his claim and provided an opportunity to submit such
evidence. Moreover, VA has conducted comprehensive efforts
to assist him in obtaining evidence necessary to substantiate
his claim. In this respect, the RO has made numerous
attempts to develop the record and has obtained the veteran's
service medical records and post-service treatment records
with regard to this issue. The veteran has been examined by
the VA in connection with this claim, and the examination
conducted in 2001 specifically found that he did not have a
sleep disorder. Finally, the veteran has not identified any
additional, relevant evidence that has not been requested or
obtained. Accordingly, the Board finds that the duty to
assist has been fulfilled. See generally, 38 U.S.C.A.
§ 5103A.
II. Allergic Rhinitis With Chronic Sinusitis
The veteran has been informed of the evidence necessary to
substantiate his claim for an evaluation in excess of 10
percent for allergic rhinitis with chronic sinusitis and
provided an opportunity to submit such evidence. Moreover,
VA has conducted reasonable efforts to assist him in
obtaining evidence necessary to substantiate this claim. In
this respect, the RO has made numerous attempts to develop
the record and the veteran has been examined by the VA in
connection with this claim. The Board notes that a statement
from L. Hayes, M.D., received in May 2001, indicated that he
had treated the veteran for allergic rhinitis. By
correspondence dated in January 1997 and April 2000, records
from Dr. Hayes were requested from the RO. Additionally, the
veteran was requested to provide these records in November
1999, February 2000, February 2001, and March 2001. In its
October 1999 remand, the RO was requested to obtain a
statement from the veteran's employer as to the types of
chemicals he was exposed to. By correspondence dated in
November 1999 and February 2000, the veteran was requested to
provide his employer's name and address. In a report of
contact with the veteran in December 1999, the veteran was
requested to submit the requested name and address. This
information was not forthcoming. After receiving additional
requests for evidence, the veteran informed the RO in April
2001, that he had no further evidence to submit. Moreover,
an August 2001 VA examiner noted that the veteran was not
currently employed. Accordingly, the Board finds that the RO
complied with a Board remand dated in October 1999, and the
duty to assist has been fulfilled. See 38 U.S.C.A. § 5103A;
Stegall v. West, 11 Vet. App. 268 (1998).
With respect to the veteran's claim for an evaluation in
excess of 10 percent for allergic rhinitis with chronic
sinusitis, disability ratings are based, as far as
practicable, upon the average impairment of earning resulting
from the disability. 38 U.S.C.A. § 1155. In considering the
severity of a disability it is essential to trace the medical
history of the veteran. 38 C.F.R. §§ 4.1, 4.2 (2001).
Consideration of the whole recorded history is necessary so
that a rating may accurately reflect the elements of
disability present. Id.; Peyton v. Derwinski, 1 Vet. App.
282 (1991). Where entitlement to compensation has already
been established and an increase in the disability rating is
at issue, the present level of disability is of primary
concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However,
the Board notes that this claim is based on the assignment of
an initial rating for a disability following an initial award
of service connection for that disability. In Fenderson v.
West, 12 Vet. App. 119 (1999), the Court held that the rule
articulated in Francisco did not apply to the assignment of
an initial rating for a disability following an initial award
of service connection for that disability. Id.
In this case, the RO granted service connection and assigned
a separate 10 percent evaluation for allergic rhinitis with
chronic sinusitis based on the date of the veteran's
discharge from service, i.e., September 14, 1983. See 38
C.F.R. § 3.400 (2001). The criteria for evaluating the
degree of impairment resulting from a service-connected
respiratory disorders were changed during the course of the
veteran's appeal. Compare 38 C.F.R. § 4.97 (1995) with 38
C.F.R. § 4.97 (2001). Where regulations change during the
course of an appeal, the Board must determine, if possible,
which set of regulations, the old or the new, is more
favorable to the claimant and apply the one more favorable to
the case Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991).
This determination depends on the facts of the particular
case and therefore is made on a case-by-case basis.
VAOPGCPREC 11-97; 62 Fed.Reg. 37953 (1997).
Under the rating criteria in effect prior to October 1996,
chronic atrophic rhinitis was rated as 10 percent disabling
when there was definite atrophy of the intranasal structure
and moderate secretion. A 30 percent rating was warranted
for moderate crusting and ozena, atrophic changes. 38 C.F.R.
§ 4.97, Diagnostic Code 6501 (1995).
The revised rating criteria, eliminated Diagnostic Code 6501,
and a new diagnostic code was added for allergic or vasomotor
rhinitis. A 10 percent rating is assigned for allergic or
vasomotor rhinitis without polyps, but with greater than 50
percent obstruction of nasal passage on both sides or
complete obstruction on one side. A 30 percent evaluation is
warranted when nasal polyps are present. 38 C.F.R. § 4.97,
Diagnostic Code 6522 (2001).
Based upon a review of the evidence, the Board finds that an
increased rating is not warranted under either the old or the
new rating criteria for allergic rhinitis. In this respect,
x-rays showed a deviated septum to the left, with clear
sinuses. Moderate crusting and ozena, with atrophic changes
of the nasal passages have not been shown. Additionally,
there never has been evidence of polyps. Accordingly, under
those criteria in effect both before and after October 7,
1996, a rating in excess of 10 percent for the service-
connected allergic rhinitis is not warranted. See 38 C.F.R.
§ 4.97, Diagnostic Code 6501 (1995), 38 C.F.R. § 4.97,
Diagnostic Code 6522 (2001).
Under the rating criteria for sinusitis in effect prior to
October 7, 1996, a 10 percent disability rating was warranted
where sinusitis was of moderate severity, with discharge or
crusting or scabbing and infrequent headaches. A 30 percent
disability rating was warranted for severe sinusitis, with
frequently incapacitating recurrences, severe and frequent
headaches, purulent discharge or crusting reflecting
purulence. 38 C.F.R. § 4.97, Diagnostic Codes 6510 through
6514 (1995).
Under the rating criteria for sinusitis in effect from
October 7, 1996, the general rating criteria provides for a
10 percent disability rating where there are one or two
incapacitating episodes of sinusitis per year that require
prolonged (lasting four to six weeks) antibiotic treatment,
or; three to six non-incapacitating episodes of sinusitis per
year characterized by headaches, pain, and purulent discharge
or crusting. A 30 percent disability rating is warranted for
sinusitis where there are three or more incapacitating
episodes of sinusitis per year that require prolonged
(lasting four to six weeks) antibiotic treatment, or; more
than six non-incapacitating episodes of sinusitis per year
characterized by headaches, pain, and purulent discharge or
crusting. 38 C.F.R. § 4.97, Diagnostic Codes 6510 through
6514 (2001). A note to the rating criteria states that an
incapacitating episode of sinusitis means one that requires
bed rest and treatment by a physician.
Severe sinusitis, with frequently incapacitating recurrences,
severe and frequent headaches, purulent discharge or crusting
reflecting purulence has not been shown by the record.
Although in November 1983, the veteran reported recurrent
headaches approximately twice a month, this has not been
shown by the objective evidence of record. Examinations at
that time revealed diagnoses that included active allergic
rhinitis; however, headaches were not diagnosed nor is it
shown that the veteran sought treatment for these headaches.
Subsequently, the veteran stated in October 1991 that he took
antibiotics a "couple of weeks out of the year" because of
sinusitis symptoms. On physical examination in October 1991,
there was moderate mucosa nasal membrane with edema and
erythema, and clear nasal discharge. The examiner stated
that the chronic nasal rhinitis was worse in the spring and
fall, and the veteran had chronic sinusitis secondary to
allergy. The impression was allergic rhinitis, possible
sinobronchial syndrome, with chronic sinusitis. An x-ray of
the paranasal sinuses indicated hypertrophy of the nasal
turbinates, bilaterally. The presence of a mucocele
involving the left maxillary sinus could not be ruled out,
indicating the possibility of chronic sinusitis. A deviation
of the nasal septum to the left was noted. The rest of the
paranasal sinuses were normal. Antibiotics were not
prescribed. An x-ray of the sinuses in 1996, found no change
since 1991. Most recently, a VA examination conducted in
January 2001 found no evidence of a sinus condition.
Accordingly, as sinusitis has not been shown to result in
frequently incapacitating recurrences, severe and frequent
headaches, purulent discharge or crusting reflecting
purulence; or to be manifested by three or more
incapacitating episodes of sinusitis per year that require
prolonged antibiotic treatment, or more than six non-
incapacitating episodes of sinusitis per year characterized
by headaches, pain, and purulent discharge or crusting by the
evidence of record, a rating in excess of 10 percent either
under the old or revised criteria for rating sinusitis, is
not warranted.
In evaluating allergic rhinitis with chronic sinusitis, the
Board has reviewed the nature of the original disability and
considered whether the veteran was entitled to a "staged"
rating for this service-connected disorder. Based upon a
review of the evidence, the Board finds that at no time since
September 14, 1983, has there ever been evidence that
disabling effects related to the veteran's allergic rhinitis
with chronic sinusitis which would warrant assignment of a
rating in excess of 10 percent under either the old or new
rating criteria. Hence, a staged rating for a portion of the
term in question is not warranted.
In reaching this decision the Board considered the doctrine
of reasonable doubt; however, as the preponderance of the
evidence is against the appellant's claim, the doctrine is
not for application. Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
III. Anxiety Neurosis with Depression
The veteran has been informed of the evidence necessary to
substantiate his claim of entitlement to an increased rating
for anxiety neurosis with depression, and provided an
opportunity to submit such evidence. Moreover, VA has
conducted reasonable efforts to assist him in obtaining
evidence necessary to substantiate his claim. In this
respect, the RO has made numerous attempts to develop the
record and the veteran has been examined by the VA in
connection with his claim. The RO complied with a Board
remand dated in October 1999. Stegall. Finally, the veteran
has not identified any additional, relevant evidence that has
not been requested or obtained. Accordingly, the Board finds
that the duty to assist has been fulfilled. See generally,
38 U.S.C.A. § 5103A.
The criteria for evaluating the degree of impairment
resulting from a service-connected psychiatric disorder were
changed during the course of the veteran's appeal. Compare
38 C.F.R. § 4.132 (1996) with 38 C.F.R. § 4.130 (2001).
Accordingly, the Board must determine, if possible, which set
of regulations, the old or the new, is more favorable to the
claimant and apply the one more favorable to the case.
Karnas.
Under the old criteria, a 10 percent evaluation for anxiety
was warranted for symptoms less than the criteria for 30
percent, with emotional tension or other evidence of anxiety
productive of mild social and industrial impairment. A 30
percent evaluation was warranted for a definite impairment in
the ability to establish and maintain effective and wholesome
relationships with people, and psychoneurotic symptoms that
resulted in such reduction in initiative, flexibility,
efficiency, and reliability levels as to produce definite
industrial impairment. 38 C.F.R. § 4.132, Diagnostic Code
9400 (1995). In a November 1993 precedent opinion, the
General Counsel of the VA concluded that "definite" is to
be construed as "distinct, unambiguous, and moderately large
in degree." It represents a degree of social and industrial
inadaptability that is "more than moderate but less than
rather large." VAOPGCPREC 9-93; 59 Fed.Reg. 4752 (1994).
Under the new criteria, a 10 percent evaluation is warranted
for anxiety that produces occupational and social impairment
due to mild and transient symptoms which decrease work
efficiency and ability to perform occupational tasks only
during periods of significant stress, or; symptoms controlled
by continuous medication. A 30 percent rating contemplates
occupational and social impairment with occasional decrease
in work efficiency and intermittent periods of inability to
perform occupational tasks, although generally functioning
satisfactorily, with routine behavior, self-care, and
conversation normal, due to such symptoms as: depressed mood,
anxiety, suspiciousness, weekly or less often panic attacks,
chronic sleep impairment, and mild memory loss, such as
forgetting names, directions, recent events. 38 C.F.R. §
4.130, Diagnostic Code 9411 (2001).
After review of the evidence, the preponderance of the
evidence is against a rating in excess of 10 percent under
either the old or the new criteria. Manifestations of the
veteran's service-connected psychiatric disorder are no more
than mild or transient. It has been shown by the objective
evidence of record that the veteran's service-connected
psychiatric disorder is productive of industrial or social
impairment to a degree greater than mild only under periods
of stress, i.e., when using medication or having an asthma
attack. VA examinations in 2001 reported that the veteran
did not show loosened associations or flight of ideas. He
denied panic attacks, crying, or depressive ideation. The
veteran was neatly dressed and exhibited no bizarre motor
movements or tics. His mood was calm and his affect
appropriate. There were no complaints of nightmares,
flashbacks, or homicidal or suicidal ideation, and no
delusions, hallucinations, ideas of reference, or
suspiciousness. The veteran was oriented, and his memory was
good. Insight, judgment, and intellectual capacity were
adequate. The global assessment functioning score at the
examinations was 55, indicating moderate symptoms or moderate
difficulty in social, occupationally, or school functioning.
See QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-IV,
46-7 (1994). Nevertheless, both examiners indicated the
veteran's generalized anxiety disorder was mild, noting it
was more severe and intense only when under the influence of
medication or having an asthma attack.
Accordingly, a rating in excess of 10 percent, under either
the old or the new criteria for rating psychiatric disorders,
is not warranted. In reaching this decision the Board
considered the doctrine of reasonable doubt; however, as the
preponderance of the evidence is against the appellant's
claim, the doctrine is not for application. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
IV. Asthma
The veteran has been informed of the evidence necessary to
substantiate his claim for an evaluation in excess of 30
percent for chronic steroid dependent asthma and provided an
opportunity to submit such evidence. Moreover, VA has
conducted reasonable efforts to assist him in obtaining
evidence necessary to substantiate this claim. In this
respect, the RO has made numerous attempts to develop the
record and the veteran has been examined by the VA in
connection with this claim. In its October 1999 remand, the
RO was requested to obtain a statement from the veteran's
employer as to the types of chemicals he was exposed to. By
correspondence dated in November 1999 and February 2000, the
veteran was requested to provide his employer's name and
address. In a report of contact with the veteran in December
1999, the veteran was requested to submit the requested name
and address. This information was not forthcoming. After
receiving additional requests for evidence, the veteran
informed the RO in April 2001, that he had no further
evidence to submit. Moreover, a VA examiner noted in August
2001, that the veteran was not currently employed.
Accordingly, the Board finds that the RO complied with a
Board remand dated in October 1999, and the duty to assist
has been fulfilled. See 38 U.S.C.A. § 5103A; Stegall.
As previously noted, the criteria for evaluating the degree
of impairment resulting from a service-connected respiratory
disorders were changed during the course of the veteran's
appeal. Compare 38 C.F.R. § 4.97 (1995) with 38 C.F.R. §
4.97 (2001).
Under the old rating criteria for bronchial asthma, a 30
percent rating was warranted when the asthma was moderate and
manifested by rather frequent asthmatic attacks (separated by
only 10 to 14 day intervals) with moderate dyspnea on
exertion between attacks. A 60 percent rating was assigned
when the asthma was severe with frequent attacks of asthma
(one or more attacks weekly) and marked dyspnea on exertion
between attacks with only temporary relief by medication with
more than light manual labor precluded. 38 C.F.R. § 4.97,
Diagnostic Code 6602 (1995).
A 30 percent rating under the new rating criteria is
warranted when the forced expiratory volume in one second
(FEV-1) value is 56 to 70 percent of the predicted value or
when the ratio of forced expiratory volume in one
second/forced vital capacity (FEV-1/FVC) is 56 to 70 percent;
or when daily inhalational or oral bronchodilator therapy is
required; or when inhalational anti-inflammatory medication
is required. A 60 percent rating is warranted when the FEV-1
value is 40 to 55 percent of the predicted value or when the
ratio of FEV-1/FVC is 40 to 55 percent or when at least
monthly visits to a physician for required care of
exacerbations are necessary or when intermittent (at least
three per year) courses of systemic (oral or parenteral)
corticosteroids are prescribed. 38 C.F.R. § 4.97, Diagnostic
Code 6602 (2001).
Based on the evidence of record, the Board finds that a
rating in excess of 30 percent is not warranted under the
revised rating criteria for rating respiratory disorders. 38
C.F.R. § 4.97, Diagnostic Code 6602 (2001). The pulmonary
function test findings do not rise to the regulatory
thresholds for a 60 percent rating under the new rating
criteria for Diagnostic Code 6602. The FEV-1 and FEV-1/FVC
results from the January 2001 VA examination does not
demonstrate a level of severity in excess of a 30 percent
rating under the new schedular criteria.
Further, review of the medical evidence of record fails to
reveal sufficient clinical diagnoses or findings that would
warrant assignment of a 60 percent rating under the criteria
for bronchial asthma not related to pulmonary function test
data, such as at least monthly visits to a physician for
required care of exacerbations or intermittent courses of
systemic corticosteroids. Although it is noted that the
veteran has in the past been treated in private hospital
emergency rooms and by private physicians for exacerbations
of his bronchial asthma, these visits for treatment were not
monthly, but intermittent. The Board additionally notes that
the last private medical evidence of record dated in June
1999 for the treatment of asthma, reported that his
service-connected asthma was stable on inhalational
bronchodilator medication. Moreover, although it has been
shown in the past that the veteran's asthma was steroid
dependent, only intermittent use of steroids has currently
been reported. In reviewing the medical evidence of record,
the intermittent use of systemic corticosteroids to control
the veteran's asthma currently does not meet the threshold of
at least three times a year in order to meet the criteria for
a 60 percent evaluation under Diagnostic Code 6602.
Therefore, the Board concludes that the asthma disability
does not more nearly approximate the criteria for a 60
percent evaluation, nor does the overall disability warrant
elevation to the 60 percent level under the new rating
criteria. 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6602
(2001).
With respect to the former regulations, the Board notes that
the old rating standard is stated in the conjunctive. In
other words, with the old rating criteria, the evidence must
prove that the rating criteria as a whole are satisfied,
nearly approximated, or about as equally satisfied as the
criteria for the lower rating. See Johnson v. Brown, 7 Vet.
App. 95 (1994). There is no showing in the medical evidence
that the veteran's asthma attacks are severe in nature, or
that over the course of a year they occur at least once a
week. There is no clinical evidence of marked dyspnea on
exertion between attacks, with only temporary relief with
medication. There is no clinical evidence of record that
shows that the veteran is precluded from more than light
manual labor due to his asthma. Overall, the severity of the
veteran's bronchial asthma is consistent with no more than
moderate symptoms. Thus, a rating in excess of the currently
assigned 30 percent under the old Diagnostic Code 6602 (1995)
is not warranted.
For the reasons and bases stated above, the Board concludes
that the preponderance of the evidence is against the
veteran's claim of entitlement to an increased disability
rating for asthma. Based on the clinical and other evidence
of record discussed above, the Board finds that the service-
connected bronchial asthma warrants no more than a 30 percent
disability evaluation under both the pre-October 7, 1996
rating criteria and the current rating criteria. Since the
preponderance of the evidence is against an allowance of an
evaluation in excess of 30 percent at any time for the asthma
under either the old or the new criteria, the benefit of the
doubt doctrine is not for application. 38 U.S.C.A.
§ 5107(b).
ORDER
Service connection for a sleep disorder is denied. A rating
in excess of 10 percent for allergic rhinitis with chronic
sinusitis from September 14, 1983, is denied. Increased
ratings for anxiety neurosis with depression, and chronic
steroid dependent asthma are denied.
DEREK R. BROWN
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.